N.J. Constitutional Convention: Vol. 4, Page 743
(Submitted July 21, 1947)
With a Constitutional Convention in momentous session, the time is opportune for amending Article I, Section 7 of our 103-year-old Constitution (which guarantees the right to trial by jury) by including the following:
"The Legislature may also authorize by law, that a verdict in any civil case may be rendered by not less than three-fourths of the jurors."
The adoption of such a provision would pave the way for the Legislature to do away with the necessity of unanimity in verdicts in civil cases - a requirement which stems from circumstances of the dim past and has no rational basis in a democracy which recognizes the right of a majority rule. Under our judicial system, the decisions of the United States Supreme Court and our own appellate courts are rendered by a vote of a bare majority. Aside from the purely historical basis of the rule, there exists no rationale for this relic of medieval times which requires twelve jurors, with varied backgrounds, coming from all walks of life, to unanimously agree to the facts and issues which confront them in a controverted judicial trial.
"The law contemplates," Mr. Justice Heher declares,1 Juliano v Abels, (Sup. Ct. 1935) 114 N. J. L. 510, 513. "that juries shall, by discussion, harmonize their views, if possible,"2 Italics here and elsewhere ours. (revealing an acute awareness of the difficulties of such an assignment). The court further cautions juries not to "compromise, divide or yield for the mere purpose of harmony." Yet judges and trial lawyers would readily agree that viewed realistically, many of the verdicts rendered - though not so indicated to the court - are the result of "compromise and yielding," because the very requirement of unanimity makes it often necessary, if the jury is to return a verdict without reporting back a disagreement.
The right of trial by jury - "frequently called the bulwark of our liberties"3 State v Dolbow, (E. & A. 1936) 117 N. J. L. 560, 564. - has been preserved by the Federal and State Constitutions. The right of a jury trial thus guaranteed is the right as it existed at common law at the time of the adoption of such constitutional provisions.4 53 Am. Jur. 697, sec. 1006. "Trial by jury" imports a trial by a jury of twelve men, impartially selected, who must unanimously concur in the verdict.5 State v Brown, (E. & A. 1898) 62 N. J. L. 666, 678.
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